SAME-SEX MARRIAGE (SSM) IN CANADA

Positions taken by various groups concerning SSM

There was little consensus during Parliamentary debates on SSM:

Prior to the signing of bill C-38 into law on 2005-JUL-20, various groups in Canada took
opposing stands on same-sex marriage (SSM):

Gay and lesbian, human rights, civil liberties, the New Democratic
Party, the Bloc Quebecois, and religiously liberal
groups supported the government's bill C-38 which expanded marriage to
include same-sex couples. They are critical of the Vermont and
New Zealand style civil unions as an option for
same-sex couples. Civil union legislation would give
same-sex couples similar rights and obligations to opposite-sex marriage
couples without defining their relationship as a marriage. It would brand
same-sex unions as inferior without the status of "traditional"
or "real" marriages.

Some religious and social conservatives originally advocated that the
government take no action. They argued that the Supreme
Court of Canada's answers to the reference does not require the federal government to revise the marriage
act. In doing so, they ignored the unanimous rulings of the highest courts in
British Columbia, Ontario, Quebec, etc. which unanimously declared the present
marriage act to be unconstitutional and required the provinces to issue SSM
licenses. This position became untenable after the federal Liberal party
introduced SSM legislation into Parliament on 2005-FEB-01.

Other conservative groups called for a national referendum
on SSM. A majority of persons voting in a referendum would almost certainly reject SSM. Only
those adults who are
sufficiently motivated to get out and vote would be counted. Those who
are opposed to SSM tend to be much more highly motivated than those who
approve of it. Younger adults, who strongly favor SSM, are traditionally
less inclined to vote. A referendum would give a very precise indication
of the opinion of those who voted, but would not accurately reflect the feelings of
the entire country.

A referendum also raises a dangerous precedent: it
would imply that the civil rights of any minority -- sexual, religious, racial,
language, etc. could be terminated at any time. Much of the public feels that
human rights of minorities should not be subject to a majority vote of Canadians.
One of the main purposes of a country's constitution, like Canada's Charter
of Rights and Freedoms is to prevent the majority from oppressing minorities
by withdrawing their rights.

The Roman Catholic Church called on the government to
scrap its legislation and replace it with a law which
emphasizes that marriage is restricted to one man and one woman. Essentially
all constitutional experts agree that this would require
a clause invoking the not-withstanding provision of the Canadian
Constitution. That clause allows governments to pass temporary legislation that
violates the Charter of Rights and Freedoms: Canada's constitution. The law would
automatically expire after five years, and have to be passed again. There does not
appear to be much enthusiasm in the country for such a law.
More details.

Mainline/Liberal Protestant groups:

The largest and most liberal
of the Protestant denominations in Canada, the United Church of
Canada, is supporting the government's legislation to make marriage
available to all couples: opposite-sex and same-sex.

The General Synod of the second largest Protestant
denomination, the Anglican Church of Canada, decided to
take no position on SSM. They have decided to stay out of the debate.
They are experiencing massive internal dissention within their
own denominations and criticism from the worldwide Anglican Communion. They appear to be lying low.

The Evangelical Fellowship of Canada who represent the most conservative wing of Protestantism,
has given little
support for not-withstanding legislation. They want a
"permanent" ban on marriage equality, through the use of a
Federal Marriage Amendment (FMA) to the Charter of Rights and
Freedoms. This would be similar to the failed American FMA legislation
which was defeated during 2004 in the
U.S. Senate. Amending the Canadian Constitution is a
laborious and time consuming task. There does not appear to be
much enthusiasm for this path. Even if such an
amendment were implemented, it would probably only be a
temporary fix. All the polls indicate that younger
Canadian adults are as strongly supportive of SSM as older Canadian
adults are opposed. If this trend continues, then the mood of
the country will become more accepting of SSM as younger adults
increase in political power and elderly Canadians disappear from
the scene. The Constitution would probably be re-amended to
restore equal marriage rights for all Canadians later in the 21st century.
More details.

The Centre for Cultural
Renewal: Iain Bensen, executive director of the Centre for Cultural
Renewal wrote: "There are two perfectly valid approaches to same sex
marriage. One is to completely disregard the validity of same-sex marriage
because one quite legitimately believes it wrong. The second is to accept
same-sex marriage. Both are valid viewpoints. Should one be the constitutional
norm or should the State be neutral as between the two?....The State should stay
out of the question of sexual dogma just as it stays out of the question of
religious dogma. We cannot agree about sexual conduct and its acceptability.
Therefore, to determine that one side of the debate on marriage should prevail
is to make a mistake. As many of the witnesses before the Committee have
indicated, it is to make a very big mistake, one that threatens the beliefs and
place of belief of many religious Canadians." He suggested that the state
abandon marriage, and leave it up to the religious organizations of Canada.
Presumably, he recommend that the government merely register relationships,
whether they be same-sex or opposite-sex. Then, it would be up to the churches,
synagogues, mosques, temples, circles and other religious groups to marry any
couple who wants to be married and who meets the criteria of their religion.
2

Two paths forward to withdraw SSM, since bill C-38 became law:

SSM became available throughout Canada, when bill C-38 was signed into law.
There now appear to be only two methods by which same-sex couples can be
deprived of the equality in marriage that they currently enjoy:

Introduction of forcible divorce legislation: The Alliance
Party, a predecessor to the current Conservative Party of Canada
favored no recognition of the relationships of same-sex couples at all.
Committed same sex couples, even if they had been together for decades and
raised children would have the status of roommates without the many hundreds of rights, obligations, protections for themselves
and their children enjoyed by married families.

The Conservative Party currently favors
legislation that would create a parallel system of civil unions -- with separate
but equal rights and obligations to opposite-sex marriage. Their leader, Stephen
Harper, promised on 2005-JUN-28 that if his party forms a new government, they
will bring in bill to forcibly divorce all same-sex married couples, and
lower their status to being merely civil unionized couples. Such a bill would
probably face the combined opposition of the other three parties. However,
the Conservatives may be able to force the legislation through if they win a
majority position in the next Parliament which is expected to be chosen in
2006-Spring.

A group of 134 legal and constitutional experts recently gave their opinion
that such legislation would be unconstitutional. 1 It
would be certain to trigger a lawsuit in which the courts would be asked for
an immediate, temporary injunction. It is almost certain that the courts
would declare such legislation unconstitutional.

Use of the Notwithstanding clause: Canada's constitution, the
Charter of Rights and Freedoms may well be unique in the world.
It contains a provision that legislators around the world would
dearly like to have access to in their own country.The Charter
contains a notwithstanding clause by which
governments can over-ride the constitution. They can write a bill that
is clearly unconstitutional, invoke the notwithstanding clause in its text,
and pass the bill into law. It could not be overthrown by the courts.

There are two factors that restrict its use.:

The notwithstanding clause has a sunset provision. Legislation that
is created with it automatically expires after five years and has to be
renewed.

Invoking the notwithstanding clause would probably generate an
incredible degree of rage among the electorate and media. Canadians tend
to be very fond of their constitution, and in particular of its human
rights clauses. Any government that took this path would probably suffer
a major backlash at the subsequent federal election. 1